Citation Nr: 22017989 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 15-33 070 ORDER A rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy prior to November 10, 2021, is granted. Evaluation in excess of 20 percent for right lower extremity peripheral neuropathy from November 10, 2021, is denied. A rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy prior to November 10, 2021, is granted. Evaluation in excess of 20 percent for left lower extremity peripheral neuropathy from November 10, 2021, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran's right lower extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis prior to November 10, 2021. 2. The Veteran's right lower extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis from November 10, 2021. 3. The Veteran's left lower extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis prior to November 10, 2021. 4. The Veteran's left lower extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis from November 10, 2021. 5. Prior to April 15, 2014, the Veteran service-connected disabilities are not sufficient to preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy prior to November 10, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for an evaluation in excess of 20 percent for right lower extremity peripheral neuropathy prior from November 10, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy prior to November 10, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an evaluation in excess of 20 percent for left lower extremity peripheral neuropathy from November 10, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for establishing entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1966 to July 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2021 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When the evidence is in approximate balance in the veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. 1. Evaluation in excess of 10 percent for right lower extremity peripheral neuropathy prior to November 10, 2021 2. Evaluation in excess of 20 percent for right lower extremity peripheral neuropathy prior from November 10, 2021 3. Evaluation in excess of 10 percent for left lower extremity peripheral neuropathy prior to November 10, 2021 4. Evaluation in excess of 20 percent for left lower extremity peripheral neuropathy from November 10, 2021 The Veteran contends that he is entitled to higher disability ratings for his peripheral neuropathy. His peripheral neuropathy of the lower extremities is rated under Diagnostic Code 8520. His right and left lower extremity peripheral neuropathy were rated at 10 percent disabling prior to November 10, 2021, and increased to 20 percent from November 10, 2021. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran received a VA examination in July 2007. A diagnosis of peripheral neuropathy was provided. Superficial peroneal nerve and sural nerves revealed findings of neuralgia. There was sensory dysfunction with findings of decreased sensation over the medial two thirds and lateral one third of the dorsum of the foot bilaterally. There was no motor dysfunction. A neurological exam of the lower extremities revealed motor function within normal limits. Sensory function was abnormal and lower extremity reflexes reveal knee jerk 2+ and ankle jerk 2+. In a VA examination from January 2010, the Veteran reported numbness in his toes and sharp pain in his heels. The examination showed decreased sensation to vibration and light touch testing. There was no evidence of associated muscular atrophy, significantly decreased peripheral pulses, or loss of reflexes. An April 2014 examination showed the Veteran experienced moderate lower extremity numbness and pain. All muscle strength and reflex testing was normal. Decreased light touch and cold sensation testing of the lower extremities were noted. There was no evidence of muscle atrophy. Mild, incomplete paralysis of the sciatic nerve was documented. The examiner further noted the Veteran had moderate lower extremity sensory loss, but good motor function. In an April 2015 examination, the Veteran reported burning, cramping pain down the legs to the feet, along with tingling numbness in the bottom of both feet, with pain worsening at night. The Veteran endorsed mild symptoms of intermittent pain, paresthesias and/or dysesthesias, and numbness. Muscle strength testing was normal, and no muscle atrophy was noted. Reflex texting revealed hypoactive reflexes of the knee and ankle. Sensation testing for light touch was decreased in the lower leg/ankle and foot/toes. Mild, incomplete paralysis of the sciatic nerve, and the external popliteal nerve was documented. The Veteran received another VA examination in November 2019. The Veteran endorsed mild symptoms of intermittent pain, paresthesias and/or dysesthesias, and numbness. Muscle strength testing, and reflexes were normal, with no muscle atrophy. Sensation testing for light touch was decreased in the lower leg/ankle and foot/toes. Mild, incomplete paralysis of the sciatic nerve was noted. Pursuant to the August 2021 Board remand, the Veteran received an additional VA examination in November 2021. The examiner was asked to provide a retrospective opinion to assess the severity of the Veteran's bilateral lower extremity peripheral neuropathy during the period on appeal. The Veteran reported his peripheral neuropathy had progressed and that he experienced numb, sharp, burning pain in both lower extremities which radiates distally and proximally and which is intermittent in nature. He endorsed symptoms of moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. Muscle strength testing and reflexes were normal, with no muscle atrophy. Sensation testing for light touch was decreased in the lower leg/ankle and foot/toes. Moderate, incomplete paralysis of the sciatic nerve, and mild, incomplete paralysis of the external popliteal nerve was documented. Upon reviewing the record, and examining the Veteran, the examiner concluded that while the Veteran's symptoms have worsened over time, the current examination most accurately reflects the Veteran's overall level of symptomatology. Based on the foregoing, the Board finds that a 20 percent rating, but no higher, for peripheral neuropathy of the right and left lower extremities is warranted for the entirety of the appeal period. Under Diagnostic Code 8520, a 20 percent rating is warranted for moderate disability. Here, the November 2021 examiner described the Veteran's lower extremity symptoms as moderate and concluded that the latest examination most accurately reflects the Veteran's peripheral neuropathy throughout the appeal period. As the Veteran's symptoms of the bilateral lower extremities have been described as moderate, a 20 percent rating for each extremity is warranted throughout the period on appeal. However, ratings in excess of 20 percent are not warranted as there is no evidence of moderately severe to complete paralysis or marked muscular atrophy of either lower extremity at any point during the appeal period. On the contrary, strength tests have been normal and there is no evidence of moderately severe incomplete or complete paralysis or muscle atrophy. As discussed, the Veteran's neuropathy of the lower extremity disabilities has been characterized by mild, or at most moderate incomplete paralysis of the sciatic nerve. Accordingly, for the entire period on appeal, ratings of 20 percent, but no higher, for peripheral neuropathy of right and left lower extremities under Diagnostic Code 8520 are granted. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence of record supports ratings of 20 percent for peripheral neuropathy of the right and left lower extremities prior to November 10, 2021. On and after that date, the evidence persuasively weighs against the Veteran's claim for ratings in excess of 20 percent for peripheral neuropathy of the right and left lower extremities. To this extent only, the claims are granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). 5. Entitlement to TDIU TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran's combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his or her case outside of the norm. The sole fact that he or she is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, prior to April 15, 2014, the Veteran was service connected for coronary artery disease at 60 percent; peripheral vascular disease of the left lower extremity at 40 percent; peripheral vascular disease of the right lower extremity at 40 percent; diabetes mellitus, type II at 20 percent; peripheral neuropathy of the right lower extremity at 20 percent; peripheral neuropathy of the left lower extremity at 20 percent; and noncompensable diabetic dermopathy. The Veteran's combined rating was 90 percent. See 38 C.F.R. § 4.25. On and after April 15, 2014, in addition to the previously discussed service-connected disability, the Veteran is service connected for peripheral neuropathy of the right upper extremity at 30 percent and the left upper extremity at 40 percent. On and after April 15, 2014, the Veteran's combined rating is 100 percent. Id. Therefore, the Veteran meets the schedular requirements for TDIU. In a July 2007 VA examination an examiner determined the Veteran's service-connected conditions cause difficulty with prolonged walking. In an October 2008 VA examination, the Veteran reported needing to rest often because of his coronary artery disease. He also reported getting tired easily due to his peripheral vascular disease. A January 2010 VA examination shows the Veteran's diabetes caused fatigue. In an April 2014 VA peripheral nerve examination, the examiner noted the Veteran must avoid working in elevated locations to prevent falls due to the neuropathy in his lower extremities. The examiner further noted the Veteran can perform both physical and sedentary employment as he has only moderate lower extremity sensory loss, but good motor function. The April 2015 VA examiner determined the Veteran's peripheral neuropathy did not impact his ability to work. March 2017 VA treatment records reflect the Veteran was last employed in 2013. The Veteran reported he worked as a truck driver, and later as a dispatcher in another trucking company. Upon review of the record, the Board finds that the preponderance of the evidence is against the claim. As an initial note, the Board observes that the Veteran did not complete VA Form 21-8940 as requested in August 2021. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information needed to address a claim for TDIU. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Further, the Veteran's service-connected disabilities do not present a disability picture indicating that TDIU is warranted for the period prior to April 15, 2014. The record reflects that the Veteran has multiple service-connected conditions. Also, the Board acknowledges that the Veteran's peripheral neuropathy limits his ability to perform physical tasks. However, the VA treatment records show that the Veteran maintained employment through 2013 with a trucking company as a dispatcher. This demonstrates the Veteran's ability to obtain or maintain employment that does not require physical tasks. Importantly, the Board notes that the evidence of record establishes that the Veteran was employed for most of the appeal period. Therefore, the Board must conclude that there is insufficient evidence to find that the Veteran's education, training, and experience precluded him from securing and maintaining all forms of substantially gainful employment prior to April 15, 2014. In sum, although the Veteran did meet the schedular criteria for a TDIU, the preponderance of the probative evidence is against a finding that he was unemployable due to his service-connected disabilities prior to April 15, 2014. Moreover, the Veteran failed to complete a VA Form 21-8940; thus, information from his prior education, training, and employment that may have supported his claim could not be considered. See Wood, 1 Vet. App. at 193. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran's claim for a TDIU, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the Board finds that TDIU is not warranted. The Board notes that as of April 15, 2014, the Veteran's service-connected disabilities combined for a disability rating of 100 percent. The Board thus finds that the Veteran's claim for entitlement to a TDIU on and after April 15, 2014 is moot. The Board finds that to assign a separate TDIU rating based on the combined symptomatology of the Veteran's service-connected disabilities, in addition to a combined schedular rating of 100 percent, would be pyramiding and is prohibited by 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As the totality of the Veteran's service-connected symptomatology has been considered in the combined schedular 100 percent rating assigned as of April 15, 2014, to compensate the same symptoms by way of a separate award of TDIU would be pyramiding. 38 U.S.C. § 1114(s), Bradley v. Peake, 22 Vet. App. 280 (2008). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.